New consultations from the Bar Standards Board

 In my last article for ‘the barrister’, I began by talking about the review of the Future of Bar Training.  Our review, and our discussions with the Bar Council and the Inns of Court, continue and in the autumn we shall be consulting you further to seek your views on a range of issues including our proposed new Authorisation Framework, the role of the Inns of Court in training new barristers, and pupillage.  We very much hope that many of you will take the opportunity to share your thoughts with us.

I also mentioned our consultation as to whether the standard of proof applied during disciplinary proceedings for professional misconduct should change to the civil standard.  The consultation closed in July and we shall be considering the responses carefully before the Board meets to discuss this issue in October.

At the end of June, we published our action plan in response to the report into legal services by the Competition and Markets Authority (CMA).  Our plan focuses on improving standards of consumer transparency as to the services provided and fees charged by barristers and the availability of redress. With similar plans being put in place by the other legal regulators, the aim is to enable consumers to compare legal service providers more easily.

In developing our plan, we have started to identify good practice in chambers. We want to build on this and ensure our proposals take into account the range of ways in which you deliver your services. With this in mind, we will be issuing a formal consultation at the end of September. As we develop our proposals, we want to engage very closely with you, the profession, with other legal regulators and with other interested parties.

For example, recent research strongly suggests that the majority of chambers do not provide information on their websites regarding fees. If we were to introduce a requirement to disclose fees and charges this would, therefore, represent a significant culture shift for the profession. We recognise this, so are very keen for you to share your thoughts with us on this important topic as our plans are developed.   We also intend to pilot some new approaches and will be looking for volunteers from the public access Bar and the family law Bar to take part.

You can read our full CMA action plan on our website at: https://www.barstandardsboard.org.uk/media/1836947/cma_-_action_plan.pdf

We have two further consultations open, both of which close in September:

The first contains a new set of proposals to require you to declare a range of information about your practice to us every year when you apply for your practising certificate. If the proposals are implemented, the new declaration requirements would start from next year.

We are seeking to obtain this extra information from you for a variety of reasons: so that we can better understand your practice and become more focused and efficient in our regulation of you; so that we can meet the requirements of the new Money Laundering Regulations; and so that we can register all those involved in Youth Court work following our recent review.

The consultation contains a number of proposals which would require you to declare the following:

  • In which areas of law you practise;
  • What proportion of your income is derived from each area;
  • What proportion of your income is derived from public access work;
  • Whether you work (or intend to work) in proceedings involving young people; and
  • Whether you provide services that engage the new Money Laundering Regulations.

To make things easier we are proposing a very similar method of identifying practice areas to that used by the Bar Mutual Indemnity Fund when self-employed barristers apply for their professional indemnity insurance.

The consultation about declaration requirements closes on 15 September and can be found on our website at: https://www.barstandardsboard.org.uk/media/1834166/draft_consultation_paper__006__jwrwchem_amendments_v3.pdf

The second of our consultations concerns simplifying the Public and Licensed Access Rules. 

This follows our recent review which found that although both schemes are working well and provide a valuable service, improvements to the rules governing the schemes could result in a better service for clients and deliver greater access to justice for the wider public.

Our consultation proposes a number of recommendations including:

  • Simplifying the existing rules – making them less prescriptive and more proportionate;
  • The continuation of the current approach, where Public and Licensed Access work is not subject to the “cab-rank rule”. This follows a “first principles” review of current arrangements; and
  • The possibility of changing the Scope of Practice Rules to allow some charities and businesses to instruct barristers without having to use the Public or Licensed Access schemes.

This consultation closes on 26 September and can be found on our website at: https://www.barstandardsboard.org.uk/media/1835713/public_and_licensed_access_consultation_paper_final__cross-references_.pdf

Following our recent review into the risks in the immigration advice and services market we recently published new guidance for the public and for professionals on immigration and asylum related legal issues. The guidance was developed in collaboration with the Solicitors Regulation Authority (SRA) and the Office of the Immigration Services Commissioner (OISC), Both sets of guidance are available on our website: https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/new-guidance-for-the-public-and-for-professionals-on-immigration-and-asylum-related-legal-issues/

We also recently published the results of our recent research with people who have used barristers’ services during family legal proceedings.  The research found that barristers are serving family law clients well but that many people still do not know how to get legal help and are worried by the likely cost.   You can read the full findings at: https://www.barstandardsboard.org.uk/media/1838930/family_law_clients_research_report_11_july_2017.pdf

Finally, we recently published our annual report for the 2016-17 financial year and our annual enforcement report.

Highlights of our work during what was the first year of our current three-year Strategic Plan included:

  • introducing new measures to improve standards of advocacy within Youth Courts;
  • introducing a new Continuing Professional Development scheme for established barristers;
  • consulting the profession and others about the future of Bar training;
  • publishing the results of our major survey about women’s experiences at the Bar; and
  • preparing to license Alternative Business Structures (ABSs).

You can read our Annual Report on our website at: https://www.barstandardsboard.org.uk/media/1840364/bsb_annual_report_2016-17_f.pdf

The BSB’s Enforcement report revealed that we have reduced the average time taken to conclude a complaint from 4.4 months to 2.8 months.  Timeliness targets for assessing and investigating complaints have also been met, with 80% of decisions being taken within the service standards of eight weeks for initial assessment and six months for the investigation stage;

While the volume of enquiries and reports about possible misconduct by barristers received by the BSB rose to 960 in 2016-17 from 882 in 2015-16 fewer of the enquiries and reports received led to formal complaints being opened (366 in 2016-17) compared with 434 last year

Meanwhile, although reports received of serious misconduct from the profession increased to 110 in 2016/17 from 80 in 2015/16, only 53% of these reports resulted in a formal complaint being raised, showing that barristers are rightly erring on the side of caution.  Excluding an unusual number relating to one individual barrister, who has since been disbarred, the number of complaints referred to disciplinary action was also down from 53 last year to 46 in 2016/17.  But the number of barristers disbarred in 2016-17 increased from seven in 2015/16 to 19.

You can read our Enforcement Report on our website at: https://www.barstandardsboard.org.uk/media/1840358/2016-17_-_enforcement_report_-_final_draft_v7.pdf

Sir Andrew Burns, Chair of the Bar Standards Board

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